Loading...
HomeMy WebLinkAbout81-525 RudnitskySTATE ETHICS COMMISSION 308 FINANCE BUILDING HARRISBURG, PENNSYLVANIA 17120 March 9, 1981 ADVICE OF COUNSEL Marvin J. Rudnitsky, Esquire 81 -525 Rudnitsky & Woelfel, P.C. 3 South Market Street Selinsgrove, PA 17870 RE: Conflict of Interest, Borough Council Dear Mr. Rudnitsky: This reponds to your letter of January 7, 1981 in which you, as Selinsgrove Borough Solicitor, requested an opinion from the Ethics Commission. Issue: In your letter you requested advice as to whether: (1) a Borough Councilman may operate as a real estate salesman; (2) whether the Borough Councilman who is also a real estate salesman may advocate changes in zoning bene- ficial to a client of the Councilman /real estate agent and; (3) whether this Councilman /real estate salesman may make such information available to a client. Facts: You informed us that a member of the Selinsgrove Borough Council is also a real estate salesman in the Borough. The Councilman in question has advocated changes in zoning that appear to advance the best interests of an apartment owner. The apartments are managed by the Councilman. Information available only to Council is apparantly made available to the Councilman's real estate or other client. Discussion: As a member of a Borough Council, the individual you describe is a "public official" within the meaning of the Ethics Act, 65 P.S. §401 et seq. Section 402 of the Act provides that a public official is "Any elected or appointed official in the Executive, Legislative or Judicial Branch of the State or any political subdivision thereof...." The Act imposes certain restrictions on the conduct of public officials. Marvin J. Rudnitsky, Esquire March 9, 1981 Page 2 The Act does not, however, totally forbid a real estate as a member of0a050 Borough tCouncil. Act the salesman from serving ++ _, Ethics Commission noted in So —fit-laic officials from engaging in was not designed to preclude p general." Areal estate business with members of the public in g salesman cound not, for example, also s full -time proles s Planning, Building, Zoning The potential for use and thereea isuseref confidlictial information in such a case creates Zoning interest because "It is diffessional PlanninganBuildpng�or situation in which (the pro and Code Enforcement Officer) would as saaessan for Borough property where that property Norris subject to his review, jurisdiction or decision." 80 -053. The Borough Councilman pervasive influence l over n every part of you partrof the he planning, t h h zoning, inspection and licensing process as in Norris to create an inherent conflict of interest between the two roes Nevertheless, the Councilmember as salesmactmustiobservee the strictures the Ethics Act places in ublic office and the use of eooflannofficialopUati0 n as The P Ethics Act clearly p roscribes us Councilman to obtain the Acteprohibits a or p tial 80-050. Just as clearly rly to influence the Council client of the Councilman attempting man's vote by holding out the promise of future employment. Id. Another area of conflict cthateaffect his real advocates or must vote on matters clients. The Commission has held thateifotheaColncilma knows at the time of his vote that he has expect to be asked to do work f clirthatlhe tilthe offer services to the particular prospective Councilman should refrain from voting o nlic e matter and place the reason for his abstention on P mange 80 -050. Thus, a Councilmenclieuld not vote reason for o the g absten - that affects a real estate should be placed on the public record. from The Act also specifically fdentaalainformationlobtained using his public office or confidential through holding public office to obtain financial g ain for himself, his immediate family or he Councilman with which he associated. 65 P.S. §403(a). fice as use confidential information lobtained so as r to g benefit f himse lf, Councilman to a real estate c his immediate family or a business with which he (the Council man) is associated. Conclusion: A Borough Councilman is a public official subject to the Ethics Act. No inherentsconfliatrof ieteaestsisesman. presented by a Councilman Marvin J. Rudnitsky, Esquire March 9, 1981 Page 3 The Councilman must not use his official position to obtain work as a real estate salesman. Nor may a client of the Councilman /salesman attempt to influence the Councilman's vote. If the Councilman knows at the time of an official vote or action on a matter affecting his real estate client that he has been or can legitimately expect to be asked to work for the client or that he will offer his services to that particular` prospective client, he must abstain from the vote. He must also place the reason for his abstention on the public record. The Councilman may not use public office or confidential information obtained through holding public office to obtain financial gain for himself, his immediate family or a business with which he is associated. The Councilman must not provide such confidential information to a client of his real estate business. This discussion is general. Particular circumstances and activities of individuals which might appear to be contrary to this advice, of course, would have to be addressed in the context of a formal complaint proceeding. However, adherence to this Advice as to future conduct will provide the protections set forth below as to future conduct. Pursuant to Section 7(9)(ii), this Advice is a complete defense in any enforcement proceeding initiated by the Commis- sion, and evidence of good faith conduct in any other civil or criminal proceeding, providing the requestor has disclosed truthfully all the material facts and committed the acts complained of in reliance on the Advice given. This letter is a public record and will be made available as such. Finally, if you disagree with this Advice or if you have any reason to challenge same, you may request that the full Commission review this Advice. A personal appearance before the Commission may be scheduled and a formal Opinion from the Commission will be issued. You should make such a request or indicate your disapproval of this Advice within the next 30 days. SSC /rdp Sincerely, Sandra S. C istianson General Counsel